Metz v. Metz

In an action in which a judgment of the Supreme Court, Kings County, was made on February 2, 1972 after a nonjury trial, inter alia granting the plaintiff wife a divorce, (1) plaintiff appeals from so much of the judgment as denied her alimony and (2) defendant cross-appeals from so much of the judgment as granted plaintiff $3,500' as a counsel fee and directed defendant to account with respect to a $17,667 fund. Judgment modified, on the law and the facts, and in the exercise of discretion, by (1) striking the third decretal paragraph thereof, which denied alimony, and substituting therefor a provision awarding plaintiff alimony of $50 per week as of the date of the trial; (2) reducing the counsel fee award to $2,500; and (3) striking the fourth, fifth and sixth adjudicatory paragraphs thereof, which direct defendant to account and pertain to the accounting, and substituting therefor a provision dismissing the cause of action for an accounting. As so modified, judgment affirmed insofar as appealed from, without costs. In our opinion, plaintiff *681should have been awarded alimony to the extent indicated herein and the counsel fee award was excessive to the extent indicated herein, in view of the relative economic circumstances of the parties (cf. Kann v. Kann, 38 A D 2d 545, 546). In addition, we think the trial court erred in directing defendant to account for certain funds which were placed in a joint checking account used for general family purposes with plaintiff’s consent and acquiescence (cf. Fischer v. Wirth, 38 A D 2d 611, 612). Rabin, P. J., Hopkins, Munder, Latham and Shapiro, JJ., concur.